Judge Richard Posner's comments in the New Republic on how he would go about deciding the constitutionality of the NSA surveillance program are refreshing for their honesty:

You [Professor Philip Heymann] say that "First we have to address ... the defiance of legislated prohibitions and the absence of published standards and any known system of accountability to the other branches." Why first? The way I approach a case as a judge--maybe you think it heresy--is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion. That is how I would proceed if asked to decide a case challenging the legality of the NSA surveillance program. I would try to find out as much as I could about the program--its contribution to national security and the inroads it makes on liberty and privacy--before I started waxing indignant over it, and that indeed is what I have tried to do, and the result of that inquiry is my article. I missed such an inquiry in the letter to Congress you co-signed that was published in The New York Review of Books.

Posner then goes on to add that, even so, "not every good thing is legal," and he does not want to pre-judge the legality of the NSA program, only discuss the virtues of its policy so that Congress might amend the statute. Yet at this point the cow is out of the barn door. If Posner's view about how to judge a case means deciding whether the policy result is good and then "ask[ing] whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion" he has sent pretty strong signals about his priors if he were asked to decide the case.

The ironies abound. If this is how defenders of the NSA program must proceed in order to argue for its legality, they well fit the caricature of judicial activism that generations of conservatives have tarred liberals with when liberals argue for extensions of civil rights and civil liberties protections. That is, instead of being constrained by law in the first instance, defenders argue that a program would be good policy and therefore strain to find that it is not illegal or unconstitutional.

Posner, however, is no ordinary conservative. He has long abandoned the belief that one must speak in pious platitudes about doing what the framers intended, or not legislating from the bench. He regards all this as mere blather designed to mystify what is really going on in legal decisionmaking. Instead, he views the judicial task "pragmatically," in his words, as an extension of ordinary policy discourse, which is only mildly constrained by legal texts and doctrines, if at all.

Posner's candor lays bare a jurisprudential problem for both sides of the ideological spectrum. Defenders of the President must come up with what I can only regard as makeweight legal arguments for justifying what he has done, arguments that would indeed require judges to legislate from the bench, if that hackneyed phrase has any meaning. (For those of who you want a detailed defense of that claim, I direct you to Marty's many posts on this site.)

Moreover, the muscular presidency that the Republican Party now promotes also has little connection to the original understanding of the President's power, despite Professor Yoo's valiant efforts to selectively quote sources to suggest that it is so. Rather, the best defense of expanded Presidential power is that the Constitution must keep up with the times, or as it is so often put, that "9-11 changed everything." That is to say, to justify their constitutional claims, defenders of the President must become that most dreaded and hated of liberal stereotypes, a bevy of living constitutionalists.

But lest liberals rejoice in this irony, it is worth noting that Posner's candor challenges them as well. Posner has dared critics of the President to abandon a debate about what the rule of law requires and concern themselves only with what the best policy is. To respond to this challenge, critics must rediscover and renew their faith in the rule of law-- in the importance of law as an institution that constrains arbitrary power even when that constraint also prevents *them* from doing what they think just and right.

The rule of law, as I have said before, is a political value as well as a legal value. It is a political value of restraint that we take upon ourselves so that we can demand the same restraint from others when the power of the state rests in their hands. The rule of law can be, and has been, used to perpetrate or apologize for many injustices in human history. But it has one saving grace-- that it offers us a place to stand when we object to the aggrandizement of power by those who are utterly convinced that they come to us as saviors. For many years conservatives warned us about would-be saviors of the left, who would sweep away legal restraints to pursue their vision of a just society. It is time to stand up to the would-be saviors of the right, who seek to concentrate unaccountable power in order to pursue their vision of national security.

Posner’s first official, printed reaction to the NSA affair (op-ed in the Washington Post: http://www.washingtonpost.com/wp-dyn/content/article/2005/12/20/AR2005122001053.html ) began saying that technically there was no violation of civil liberties because only machines were doing the work. More than naïve, I’d qualify that as an appalling statement, considering the professional credentials of who made it. I believe that since then he hasn’t dared repeat the “technical” argument, but now prefers to embrace Machiavelli’s best know contribution to political theory - the end justifies the means - and shove it into 21st century US law interpretation. Prof. Balkin, I believe you are being too kind. Even John - Voodoo Law - Yoo tries (unsuccessfully) to give a legal explanation based on precedent for his medieval conception of the state. Posner is simply doing partisan politics here, and that, in someone who is a judge and a law professor, can only be branded as intellectual bankruptcy.

I don't think the left CAN embrace the rule of law in any meaningful sense, because to do so would require at a minimum either rolling back the New Deal, or a massive and unlikely to be ratified series of constitutional amendments. The Constitution, simply and unambiguously, does not create a federal government of the scope and power we have today.

The right isn't much better off, of course. Government by dishonest people is the price of a big government under a small government Constitution. Posner is simply more honest about this, less inclined to pretent that the emperor is fully clothed.

Two things come to mind. First it seems to me to be a case of the ends justifying the means when Posner declares that the first consideration is what the outcome of an activity is in determining its merit. Of coures, I'm just a layperson - Posner's prefered source for reaction to the activity.

Second, with respect to no liberties being violated because machines and not people are doing the spying, how about if I rig a booby trap in my house to shoot an intruder? Technically, a machination (whatever lever and pully activates the booby trap) and not a person would be doing the shooting. Under the 'machines are free of malice' logic, there are no guilty parties, only a victim. And, if I happen to bag a bad guy, all is well that ends well.

However, I've become sort of born-again Originalist, as the more I read, the more the conservative's positions undermined by 100s year old texts.

For instance, Lord Camden is quoted in Boyd v US (1886) which would undermine Judge Posner's newly inspired pragmatism.

In short, I don't want to hear about _how_many "inroads it makes on liberty and privacy" as Posner seems to suggest might be relevant.

From Boyd, quoting Lord Camden:"By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing, which is proved by every declaration in trespass where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show, by way of justification, that some positive law has justified or excused him." (emphasis mine)

So now we hear from our friends on the right not only that the end justifies the means, but that the laws involved are old, quaint, and do not apply to the present day. We have specifically heard the president talk about how the N.S.A. is a law that is more than twenty years old (oh my gosh!!).

I may be off base here, but the last time i looked, it was my impression that a law that was on the books more than twenty years was usually considered settled law, and not a quaint anachronism. By ignoring the law, isn't the administration doing exactly what they complain about the left; specifically, "non-elected liberal judges legislating from the bench". If legislation is the province of congress, the president is doing the exact same thing in ignoring the law? Come to think of it, he's doing worse. HE'S BREAKING THE LAW.

Judge Posner's approach is exactly the kind of legislating from the bench and judicial activism that the conservatives constantly moan and groan about, except when the end result is something they favor.

If a twenty year old law is quaint. If as Brett says, the Constitution was written at a time that did not contemplate society as it is today, there is a mechanism for amending the document short of an end run. If it is that badly out dated, which I contend it is not, then the proper mechanism is a Constitutional Convention, not a wholesale disregard for the rule of law.

The law of the land is the law of the land. There is a reason for laws to be on the books. There is a reason for laws to be obeyed, especially by the President, and properly applied by the Courts. If Mr. Bush doesn't like the law, the solution is not to ignore it, but to try to get the law changed legislatively....

... oh, i forgot, he tried that with the N.S.A. and got rebuffed by a republican congress.

Finally, and please forgive the rambling nature of this entire post, they have another well established legal precedent and procedure for a cheif executive who refuses to follow and obey settled law. It's called impeachment.

Perhaps I can add an economist's methodological insights, such as they are.

One way to think of Posner's characterization of his approach is that he seeks to maximize some objective function---good policy---subject to the constraints defined by the Constitution. I recognize that this sounds backwards or activist to many lawyers.

So consider what economists (and linear programmers) would call the dual of Posner's primal problem: suppose we seek to minimize the violation of constitutional constraints subject to getting a good policy outcome.

Under what conditions do the primal and dual problems have different solutions? There are well-known mathematical conditions (largely involving convexity) under which primal and dual problems lead to identical solutions.

But I do think it is interesting to observe that solving the dual problem analogizes easily to promoting one's preferred outcome in those cases when one identifies penumbras in the Constitution. Meanwhile, as Prof. Balkin suggests, we have Posner promoting his preferences unless they run afoul of clear constitutional dicta---the primal to the dual problem that is more typically posed in such discussions.

At the end of the day, it's hard for me to see why the methodological distinction must necessarily matter: either way we satisfy constraints, either way, the decisionmaker chooses his/her preferred outcome within these constraints (by whatever metric of preference---e.g., pragmatism or original meaning---one chooses to apply). It seems to me that the real issue here is that the very suggestion by Posner of his method is a tipoff to his underlying views regarding the NSA program's legality: his method itself is not different in any important way, but his characterization of it suggests a predisposition to find the program legal.

I think the problem with Posner's paragraph is not that he is primarily concerned with policy, but that it appears that he sees himself as the source of what is good policy. The focus should be on the policies and goals that statutes passed by Congress and signed by the President, as well as the Constitution promote. It is not the Judge's policy preferences that matter, but the policy of the Constitution and the democratic branches of the government.

In this case, the statutes in question and the Constitution seem much more concerned about restraining the power of the executive branch than Conservatives would prefer during this election cycle.

Isn't Posner's view here similar to Hamilton's Opinion as to the Constitutionality of the Bank of the United States, i.e., that there are fundamental responsibilities that any government has and that when these responsibilities are in question, considerable deference needs to be given.

In the case of the bank it was the economic well being of the country, in the case of the NSA program it is the security of the country against a foreign enemy.

Posner isn't daring critics of the president to "abandon a debate about what the rule of law requires" and urging a focus on what the best policy is. He's saying they're the same question.

One may disagree with Posner's interpretation, but it takes something more to convert his interpretive methodology into an attack on the rule of law. As I see it, Posner is explaining what the rule of law, as he understands it, actually requires.

I'd think you'd understand this. It seems to me it has quite a bit in common with your constitutional methodology, and I don't think you'd be happy if some methodological opponent urged that your interpretations were't consistent with the rule of law.

Talk about a strawman argument - Posner is a well-known "pragmatist" (as you admit in this post!), yet you facilely claim that his long-standing tendencies in that direction somehow makes "ironic" the fact that other conservatives favor constructionism. Your conclusion does not proceed from your premise.

Perhaps your energies might be better spent engaging the actual arguments being made in favor of the Administration's position than making the fatuous observation that a pragmatist judge's stated method of reaching a decision sure seems pragmatic!

"If as Brett says, the Constitution was written at a time that did not contemplate society as it is today"

Not society, government. They're not the same thing. The Constitution, as written, manifestly does not authorize federal government of the size and power the left demands. I happen to think that the size and power of government it DOES authorize would work just fine with today's society.

To respond to this challenge, critics must rediscover and renew their faith in the rule of law-- in the importance of law as an institution that constrains arbitrary power even when that constraint also prevents *them* from doing what they think just and right.

Hey - sounds like Balkin is advocating the Constitution in Exile!

Let me hear Balkin say he wants to roll back Constitutional jurisprudence to before FDR's time... only THEN will I believe that Balkin really believes what he writes here.

your energies might be better spent engaging the actual arguments being made in favor of the administration's position

JB addressed this:(For those of who you want a detailed defense of that claim [that arguments for the legality of the NSA program are weak], I direct you to Marty's many posts on this site.)

As for Jim's advice to read powerline...The post linked to is dishonest: among other things, its description of In re: Sealed Case No. 02-001 is in direct opposition to what the case actually holds. I would recommend that no one trust a Powerline synopsis of any case.

Alex reworded:Unless you agree that the Commerce Clause should be interpreted more narrowly, you cannot honestly argue there are constitutional limits on the President's ability to break laws Congress passes and are signed by the President.

Strikes me that if this practical standard is the standard, we have to take into account the Bush Administration's handling of any of a number of affairs. Since the Bush Adminstration has acted in a uniformly incompetent fashion, it appears quite unlikely that it should be entrusted with the power and authority to conduct warrantless searches.